{UAH} The 'McConnell Rule' is law, and Senate Democrats should sue to enforce it

BY KEN LEVY, OPINION CONTRIBUTORTWEET SHARE EMAIL

This week, President Trump will announce his nominee to replace Justice Anthony Kennedy on the United States Supreme Court. Senate Majority Leader Mitch McConnell has promised to schedule the nominee's confirmation hearings for this fall, before the midterm elections.

If and when McConnell carries through on this promise, Senate Democrats should immediately file a federal lawsuit against him for violating the so-called "McConnell Rule." (According to this rule, as McConnell himself stated on Feb. 13, 2016, "The American people should have a voice in the selection of their next Supreme Court Justice.") The issue - whether the McConnell Rule is now binding precedent - would not be political (and therefore "nonjusticiable") but rather fundamentally legal (and therefore "justiciable").

The minority party needs to have someremedy, some legal recourse, when the majority leader is completely immune to considerations of fairness and consistency in his exercise of the Senate's substantial constitutional powers. Imagine, for example, that McConnell suddenly stipulated that only 40 instead of 51 votes were necessary to confirm a Supreme Court nominee. Clearly, the validity of this rule change would be a constitutional question, rather than a political question, because it implicates a fundamental democratic principle: majority rule.

 

McConnell's imminent abandonment of the McConnell Rule implicates an equally fundamental democratic principle: due process for 49 percent of the Senate, which itself represents tens of millions of American citizens. Just as the judiciary would have the authority to intervene if McConnell changed the vote threshold from 51 to 40 (or, for that matter, if he refused to step aside as majority leader should the Democrats regain control of the Senate in November), so, too, the judiciary has the authority to intervene if McConnell violates his McConnell Rule.

Assuming that a court - preferably the Supreme Court - agrees with my analysis, McConnell (the defendant) would then have to argue either that the McConnell Rule is not law or that it is law but, as he claimed on June 28, applies only to "constitutionally lame-duck" presidents. Either way, however, he would lose.

Whether McConnell likes it or not, the McConnell Rule is law. When McConnell declared in 2016 that Supreme Court nominees are not allowed hearings in an election year, that decree carried legal force - the same legal force as former majority leader Harry Reid's reduction of the threshold to defeat filibusters for executive appointments and most judicial nominations from 60 to 51 senators.

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*A positive mind is a courageous mind, without doubts and fears, using the experience and wisdom to give the best of him/herself.

 

 We must dare invent the future!
The only way of limiting the usurpation of power by
 individuals, the military or otherwise, is to put the people in charge  - Capt. Thomas. Sankara {RIP} '1949-1987

 *"Those who make peaceful revolution impossible will make violent

revolution inevitable"**…  *J.F Kennedy

 

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